from the get-you-a-constitutional-violation-that-can-do-both dept

Legislation arising from tragedies is almost uniformly bad. One need only look at the domestic surveillance growth industry kick started by the Patriot Act to see that fear-based legislation works out very badly for constituents.

Eric Adams, the president of Brooklyn Borough, and state Senator Kevin Palmer are currently writing the proposed legislation, which would give law enforcement authorities the power to check up to three years of an individual’s social media accounts and internet search history before they are allowed to buy a gun, WCBS Newsradio 880 reported. One of the main aims is to identify any hate speech shared by the users, as the politicians noted that such offensive comments are generally only discovered after mass shootings occur.

The facile explanation for this ridiculous piece of legislation is this: somehow the Pittsburgh shooter might have been prevented from buying a gun because he posted anti-Semitic content to a social media platform.

This premise will only make sense to those incapable of giving it more than a superficial examination. First off, gun ownership is Constitutionally-protected, whether these legislators like it or not. It doesn't make sense to abridge someone's rights over social media posts, even if the posts contain bigoted speech. That speech is also protected by the Constitution, so combining the two simply doubles the chance the law will be struck down as unconstitutional. Plenty of people engage in ignorant bigotry. Not all of them are would-be criminals.

This law would treat every gun buyer as a suspected criminal who may only take advantage of their guaranteed rights by engaging in government-approved speech. That's completely the wrong way around. This Brooklyn lawmaker doesn't seem to understand this inversion even when he directly, if inadvertently, addresses it.

“If the police department is reviewing a gang assault, a robbery, some type of shooting, they go and do a social media profile investigation,” the borough president pointed out.

Yes. But in these cases, a criminal act has occurred and an investigation is warranted. This legislative proposal treats gun buying as a crime and people's social media history as some weird form of evidence. That's fucked up, no matter how you might feel about the Second Amendment. Lots of shitposting and venting can look dangerous if viewed solely in the context of finding a reason to deny someone a gun.

Then there's the still unaddressed question of what law enforcement is supposed to do if it decides someone's social media posts are worrying enough they should be denied gun ownership. Are officers supposed to head out and arrest this person for being aggressively racist? Is that where this is headed? Are these legislators actually going to enable literal policing of speech?

And how is this supposed to be accomplished? Would potential gun buyers be forced to relinquish account info and passwords to ensure law enforcement is able to see everything purchasers have posted?

These are all worrying questions, none of which anyone involved with this bill seems to have answers for. Sure, it's still early the legislative process, but these lawmakers are speaking about it publicly using specious reasoning and inapt comparisons. This suggests they like the idea they've had, but haven't really thought about it past the point of "the Pittsburgh shooter posted racist memes, therefore this would definitely work."

Adams said the bills take the First Amendment right to free speech and the Second Amendment right to bear arms into the equation.

“We’re not talking about a person advertising ‘I hate a particular elected official. I hate a policy that’s passed,’” Adams said. “If there’s something that a law enforcement officer of a reasonable mind reviewed that shows this person does not hold the mental capacity to own a gun, then he should not be able to get a permit. We should use the same standard that determines whether a police officer can carry a gun.”

It doesn't take either of those rights into account. It simply says police will now be allowed to view three years of social media history (along with search history from Google, Yahoo, and Bing) to determine gun ownership eligibility. All Adams says is it won't be used to punish certain protected speech. (And it will be used to punish this specific protected speech because any law that can be abused by the government will be abused by it.)

To add to surreality of the proposal, Twitter For Bigots Gab won't be included in the social media monitoring despite this being the site where the Pittsburgh shooter posted the comments these legislators point to as the impetus for this terrible legislation.

No matter how it's pitched, it all comes down to this: no Second Amendment rights for New Yorkers if they don't use their First Amendment rights in a way their government approves.

from the can-we-somehow-add-in-a-3rd-amendment-issue-here dept

A year and a half ago, we wrote about a troubling ruling by the 5th Circuit siding with the US State Department waving a magic "national security" wand to ignore the First Amendment implications of banning the internet distribution of the CAD files for 3D printing components for guns. As we pointed out over five years ago, the hysteria over these 3D printed gun plans was silly. Attempts to ban them from the internet wouldn't just fail, but would actually draw much more attention to them.

However, in the last few days the hysteria has returned... and much of it is misleading and wrong, and while most people probably want to talk about the 2nd Amendment implications of all of this, it's the 1st Amendment implications that are a bigger deal. First off, most of what you've probably heard about the case is either wrong or misleading. David French has a pretty good post separating fact from fiction. This is not (as some claimed) the Trump administration "legalizing" 3D printed guns. It is already legal to make guns yourself, so long as they are not undetectable. Undetectable guns are already illegal under the Undetectable Firearms Act of 1988 and nothing has changed or is changing on that front.

The issue, again, is whether or not Cody Wilson's Defense Distributed can post the files to the internet specifically because the State Department claims that this would represent an illegal export of a weapon, violating ITAR, the International Traffic in Arms Regulation. Let's be clear about this: throughout all of this no one (not even the US government under Obama) argued that detectable 3D printed firearms are illegal in the US. That's because they're legal. They have been before this and they still are. The specific issue was that the State Department sought to block the files put up by Wilson/Defense Distributed because of export restrictions outside of the US. This is silly for a variety of reasons, as already stated, because the files are already widely available all over the place, and that's not going to change.

The 5th Circuit ruling in early 2017 was problematic, because it effectively pushed aside the prior restraint/First Amendment concerns by just saying "well, national security trumps that issue." But, that's not how the First Amendment works. There is no "balancing test" for the First Amendment. There is a very small and very limited set of exceptions to the First Amendment, as set forth by the Supreme Court. They do not conduct a balancing test. Indeed, in United States v. Stevens, the court explicitly rejected the idea of a balancing test.

The Government's proposed test would broadly balance the value of the speech against its societal costs to determine whether the First Amendment even applies. But the First Amendment's free speech guarantee does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs.

So that ruling was already problematic for the 1st Amendment.

What happened here, was that the federal government settled its case with Wilson and Defense Distributed, which would have allowed him to put the files back up on the internet. Once again, to be clear, this did not "legalize" 3D printed guns. 3D printed guns are already legal, so long as they are detectable. If they are undetectable, they've been illegal since the Undetectable Firearms Act of 1988.

The only issues here were whether or not a court could prevent putting files (speech) onto the internet out of a fear that those files might be "exported" and turned into a weapon... and whether or not that would violate regulations against weapons trafficking.

But, never underestimate the amount of hysteria that can come from questions around both the 1st Amendment and the 2nd Amendment -- and when combined things go into overdrive.

So a bunch of states sued to somehow try to stop this whole thing from going forward -- though it's unclear what there is to actually stop. Can states stop the US government from settling a lawsuit? That seems odd. Either way, at least three courts rushed forward to issue injunctions against posting the files, including Washington State, where the judge didn't even seem to consider the First Amendment issues at hand, and issued a ruling that seems to be a classic case of prior restraint. I mean, the ruling literally doesn't even discuss the First Amendment concerns. Instead, it argues that there's a likelihood of success under the Administrative Procedures Act, effectively arguing that because the government is modifying the munitions list, it needs to go through a more thorough administrative process. That... seems weak, especially given the First Amendment issues at play.

Again, no matter how you feel about the 2nd Amendment, guns or gun control... that's not really the issue here, even if it's clouding much of the reporting on it. Nothing in this case is about legalizing 3D printed guns. It is entirely about exporting computer files that might be used by people outside of the US to make guns, but which are already widely available in many places on the internet and aren't going to go away (note that this case only applies specifically to Cody Wilson and his organization, and doesn't directly impact third parties who are already distributing the files elsewhere).

The real concern here should be about the First Amendment. As we mentioned earlier, in suggesting that there's some sort of "balancing test" between national security and free speech -- and that prior restraint is acceptable when balanced against national security -- the courts have opened up a huge Pandora's box of trouble. Even if you hate guns and think the 2nd Amendment should go away, please think carefully about what the world looks like when the government is allowed to censor speech that it claims is a risk to national security.

from the (202)-225-6155-/-(775)-686-5760 dept

The debate over gun control has reached new heights following the shooting at a high school in Florida. Every mass shooting prompts debate over the Second Amendment and access to guns, but this one, led by students whose classmates were killed, has more momentum than most.

Youth is wasted on the young, people say, as they note the steady decline in voter participation in younger demographics. This seems to imply more students should be involved in social and political issues, but this particular participation has been met with lots of ridicule and anger. In other words, it's been greeted with hypocrisy, which is pretty much what we expect in heated political debates.

Nothing is more heated than the gun control debate. And everyone with an opinion is wrong. But it's the youth that are the wrongest, and those bemoaning youthful antipathy aren't responding very well to this sudden display of activism. Gun control-related walkouts have occurred in schools all over the nation, and students expressing their displeasure with their representatives are finding out firsthand how thin-skinned their representatives are.

A student at a Nevada high school has been punished by his school for comments he made to a Congressman's office during a personal phone call.

[Noah] Christiansen told the Washington Post that during the walkout, his classmates passed around pieces of paper with phone numbers of legislators to call. Christiansen called the office of Rep. Mark Amodei, a pro-gun Republican, to complain, and reached a staffer in his office.

He told the Post that he said, “I believe bump stocks should be banned, the minimum age should be raised, and Congress people not already asking should get off their fucking asses and do something about gun control.”

Heated topic. Heated words. We're all adults here, except for the student being punished by adults. Rep. Amodei's office called the student's school to complain about his use of the F-word. That should have been the end of it, and the only punishment handed out should have been public mockery of Rep. Amodei and his overly-sensitive staffers.

Of course, that's not what happened. Christensen's school responded by suspending him for "disrespectful behavior/language." That's just stupid. This language didn't target the school, its staff, or fellow students. It targeted Congress in general, which is not exactly known for getting off its fucking ass and checking things off its To Do list.

Amodei defended his staffer and said no apology is necessary. The congressman said the situation was not a matter of shutting down the student’s First Amendment rights.

“I’m not apologizing because my guy accurately described what happened in the phone call,” he said.

In other words, this isn't on me or my staffers. This is on the school because it chose to react this way to a completely unnecessary, completely retaliatory phone call made by a staffer who felt he didn't need to put up with angry, sweary teens. But Amodei's non-apology gets even worse. He also claims his office is in the right because it didn't request a small parade of horribles to be inflicted on the student.

“He related the guy was vulgar,” Amodei said in a brief interview Monday. “He didn’t ask [the school] for any specific thing or beat the kid up. He just said ‘I wanted you know that this guy was really vulgar. We had a lot of calls and nobody else was,’ and that was it.”

Well, Amodei likes to dish it out but he sure can't take it. He used plenty of vulgar language to describe his interactions with the Bureau of Land Management, according to audio obtained by USA Today.

“While I think the world of Mr. Ruhs, I’m not going to try and get between him and your deputy guy, whatever is going on with those two,” Amodei said he told Zinke. “With all due respect, I’ve been to enough rodeos to sense an issue there and let’s just move on.

“Nevada has suffered through a decade of s--- BLM leadership,” he continued. “To put a strong successful leader in there for a net 18 months and then, for any reason, ship him, or let him leave to a position in Boise, is absolutely tone deaf.”

Northern Nevada’s lone congressman went on to decry “bulls---” legal provisions he said were cited by a Zinke subordinate in explaining why Amodei wasn’t told of Ruhs’ departure. That explanation, he felt, amounted to Zinke’s office indirectly telling him to “eat s---” over the incident.

That is awful. And to hear it coming from a respected pillar of the political community? It's almost too much to bear. Someone should probably inform his office that Amodei is running around being "really vulgar." Staffers shouldn't be asked to beat up Amodei, probably. That would just make complainants sound as stupid as the Congressman. But his frequent vulgarity, aimed at prominent people in positions of great responsibility, shouldn't go unnoticed. Neither should he and his office's hypocrisy on the subject of vulgarities and who's allowed to use them.

Amodei claims his office's retaliatory act was meant to show the student words have consequences. They do. And Amodei is hopefully learning quickly that those in power are not immune from the consequences.

from the stupid-is-as-stupid-sues dept

When the Department of Justice handed down remedies for the Seattle Police Department's excessive use of excessive force, it told officers they would need to dial back their penchant for deadliness. Just prior to the DOJ's civil rights investigation, the PD was responsible for 20% of the city's homicides. The DOJ recommended officers work on their de-escalation tactics, as well as partake in training meant to steer officers away from viewing anything strange (medical conditions, mental health issues, drug impairment, behavioral crises) as something to be shot at or beaten.

Seattle PD officials adopted the DOJ recommendations and altered the department's use of force policies. Rather than comply or quit, several police officers decided to file a federal lawsuit against the DOJ. The officers asserted a nonexistent right (the "right" to make it home alive) and hammered an existing right (the 2nd Amendment) to it in hopes of persuading a federal court that using less force less often somehow violated their right to keep and bear arms.

The crowdfunded lawsuit didn't get very far. The district court pointed out the 2nd Amendment does not create a "right" to defend yourself, much less attempt to guarantee officers' personal safety. Gun ownership is regulated, not a free pass for cops to violate PD use of force policies as they see fit. It also tossed a variety of other rights violations claims, noting these were even more tenuously connected to the officers' protest of the new use of force policy than the 2nd Amendment claims.

The officers appealed this decision because of course they did. Despite raising less than $4,000 of their $100,000 legal defense fund goal, the officers apparently had enough funding to lose twice. The Ninth Circuit Court of Appeals has rejected [PDF] the officers' ridiculous rights violation assertions. (h/t Kevin Gosztola)

As the court points out, the use of force policy these officers felt needed to be addressed with a civil rights lawsuit does zero damage to the officers' civil rights.

The UF [Use of Force] Policy explicitly recognizes that Appellants may use their department-issued firearms in self-defense in an encounter with a suspect—including the use of deadly force with a firearm. The UF Policy states that “[d]eadly force may only be used in circumstances where threat of death or serious physical injury to the officer or others is imminent[,]” and recognizes that “sometimes the use-of-force is unavoidable[.]” As a result, the UF Policy does not impose a substantial burden on Appellants’ right to use a firearm for the purpose of lawful self-defense.

The court goes on to note the restrictions placed on force deployment do not undermine officers' ability to defend themselves if needed.

The UF Policy requires Appellants to employ de-escalation techniques only “[w]hen safe under the totality of the circumstances and time and circumstances permit.” Thus, the UF Policy expressly contemplates that de-escalation techniques will not be feasible in every situation, and even states that “sometimes, the use of force is unavoidable.” The UF Policy also provides that Appellants may use deadly force where an objectively reasonable officer would conclude that the “threat of death or serious physical injury to the officer or others is imminent.” These provisions ensure that Appellants may use their department-issued firearms to defend themselves and the public.

The court also reminds officers use of force policies are written with more than police officers in mind. Their rights are not more important than the rights of the people they serve.

The UF Policy also requires that Appellants use “[d]e-escalation tactics and techniques . . . when safe and without compromising law enforcement priorities,” and states that Appellants “shall consider whether a subject’s lack of compliance is a deliberate attempt to resist or an inability to comply based on” a variety of factors. Those provisions advance the City of Seattle’s important government interest of ensuring the safety of the public by mandating de-escalation techniques and reducing the likelihood that a firearm will be drawn or used where such force is not “objectively reasonable,” “proportional to the threat or urgency of the situation,” or “necessary to achieve a law-enforcement objective.”

Also struck down is the officers' attempt to restructure the 2nd Amendment to cover their use of deadly force while on the clock. As the court notes, the rights are limited to "defending hearth and home." Nowhere is it written police officers have a right to make it home safely, and there's nothing in the Constitution that allows public employees to unjustifiably take the lives of others in order to ensure officers suffer no harm. That ends this particularly misguided attempt to turn the Constitution into a free pass for excessive force… unless there's still enough left of the $3,730 to crank out a Supreme Court petition.

The 123 suing officers represent about a tenth of the Seattle PD's police force. Why this percentage thought the new policy was worth suing over is unclear. The lawsuit was so misguided the Seattle police union didn't offer its endorsement or support, and it's in the business of suing over anything that threatens officer autonomy. The only thing this lawsuit has done is provided a list of 123 officers who would apparently prefer to shoot their way out of any situation, whether or not the use of force is justified.

from the leaping-at-the-chance-to-look-stupid-at-two-court-levels dept

A few years ago, some Seattle police officers came up with a novel plan to battle DOJ-imposed limits on their use-of-force. Since their union wisely decided to steer clear of this ridiculous legal battle, the officers chose to crowdfund their way into the federal court system.

Armed with a little over $3,000 and some particularly dubious arguments, the protesting cops filed a lawsuit claiming their Second and Fourth Amendment rights were being violated by the DOJ's use-of-force restrictions. It did not go well.

The officers' arguments were unsupported by the Constitution or case law, Chief U.S. District Judge Marsha Pechman said in an opinion issued Monday.

[...]

Plaintiffs can point to no case establishing that the Second Amendment codified a free-standing right to self-defense, as opposed to case law interpreting the textual Second Amendment rights to “keep and bear arms” in light of their purposes…

[...]

Nor did she agree with the officers' insistence that the policy violated a "right of self-defense as embedded in the Fourth Amendment," which protects against unreasonable search and seizures. Pechman said the argument grossly misconstrued Fourth Amendment law.

The Ninth Circuit seemed skeptical of Seattle police officers’ claims that a new use-of-force policy mandated by the Department of Justice violates their Second Amendment rights.

U.S. Circuit Judge N. Randy Smith told the officers’ attorney he didn’t “have much of an argument” at a three-judge panel appellate hearing on Monday.

The officers continue to claim de-escalation policies violate their Second Amendment rights by somehow robbing them of the ability to defend themselves. Not quite "Obama's coming for my guns," but close. How armed officers are being stripped of the right to bear arms -- including using them in defense (but perhaps less frequently) -- is something their lawyer hasn't been able to explain to any court's satisfaction.

The Fourth Amendment argument is even worse. Even in the plaintiffs' own words, it's spectacularly bad: a "metaphorical seizure" of their "right" to use whatever force they feel is necessary.

As the opposing counsel points out in a stunning display of logic, the place to protest new police policies isn't this courthouse. It's the one that approved the DOJ consent decree.

If the officers had real concerns about the use-of-force policy, they should have brought them before the federal judge overseeing the police reforms rather than asking an appellate panel to “create a new fundamental constitutional right,” [city attorney Gregory] Narver said.

The 126 Seattle law enforcement officers involved in this lawsuit have achieved the nigh impossible: making a police union look like the saner party in the wake of a DOJ investigation.

from the 11th-Circuit:-try-to-answer-the-door-in-handcuffs,-if-possible dept

Qualified immunity -- a legal doctrine that originates from court decisions rather than statute -- received another boost from the federal court system last week. Qualified immunity is the concept that allows overreaching and abusive government employees and officials to stay one step ahead of accountability. If their actions don't "clearly violate" established law and/or precedent, police officers, etc. can walk away unscathed from deprivations of other people's life and liberty.

The Eleventh Circuit Appeals Court has declined [PDF] a chance to rehear a case in which the Second Amendment is implicated nearly as much as the Fourth Amendment. In doing so, no further precedent will be set, which just adds to the list of actions law enforcement officers can perform and still expect to be granted qualified immunity. If there's no precedent set, it's pretty hard to "clearly violate" it. Handy.

The short story: Andrew Scott was home playing video games with his girlfriend when someone began banging loudly on his door. Since it was 1:30 am, Scott was cautious and answered to door with a gun in his hand, pointed at the floor. He opened the door to see only a "shadowy figure" and began stepping backwards. The shadowy figure was Deputy Richard Sylvester, who immediately shot Scott six times, killing him.

Deputy Sylvester admits he never identified himself as a law enforcement officer. He also claims Scott's movement back into his apartment was perceived by him as a Scott attempting to find cover before opening fire. Perception is all that matters, and only one person's perception really matters: Deputy Sylvester's.

The district court concluded that Deputy Sylvester’s splitsecond decision to use deadly force was objectively reasonable under the total circumstances—a reasonably perceived imminent threat of serious physical harm—and was not a constitutional violation.

[...]

At a minimum, no clearly established federal law as of July 15, 2012 gave fair and clear notice to Deputy Sylvester that his conduct in these unique circumstances was objectively unreasonable and unlawful, and thus “no reversible error” was shown.

And so it goes. Cops can bang on your door in the middle of the night without announcing themselves and it's up to you not to scare them into killing you. The Second Amendment gives you the right to bear arms, but apparently not if you're going to be startled by unannounced law enforcement at 1:30 in the morning.

The dissent isn't thrilled with the decision to pass on the rehearing, noting the implications this has on two amendments: the Fourth and the Second. But especially the Second.

If Mr. Scott was subject to being shot and killed, simply because (as the District Court put it) he made the “fateful decision” to answer a late-night disturbance at the door to his house, and did so while holding his firearm pointed safely at the ground, then the Second Amendment (and Heller) had little effect.

The dissenting judges also delivered one biting sentence about the law enforcement tactics that led to Scott being killed by Deputy Sylvester.

We have never before held that police can, without justification, provoke a panic, and then hide behind it by claiming that “everything happened fast.”

It doesn't matter is the court has "held" this or not. It happens all the time. Police create the exigency, then use it to excuse every rights violation that occurs thereafter.

For those not in the know, officers are allowed to knock on a citizen’s door as long as they don’t exceed the boundaries of what any door to door salesman or Girl Scout might normally do. Here, the Court figured that it wasn’t clear the officers exceeded the boundaries of a knock and talk, because it’s typical for four Girl Scouts to take up tactical positions around your door at 1:30 in the morning, pound your door, and then shoot you when you answer it. As one appellate judge noted in upholding the grant, it’s not like the officers had helicopters.

Literally, that’s the standard. No helicopters hovering overhead. Still, as far as qualified immunity analysis goes, that might be right.

By refusing to rehear the case, the Eleventh Circuit has refused to discuss raising the bar for qualified immunity, much less move forward towards something that might further protect so-called "enshrined" rights like the multiple amendments violated in this case.

Every time a court declines to reexamine a case, the QI bar remains static. Add up enough non-decisions and the bar begins to drop.

Even though Deputy Sylvester was leaping from one hunch to another. Even though it was one in the morning. Even though he failed to consider that a reasonable person might come to his door armed in response to aggressive late-night knocking. Even though a “knock and talk” is supposed to be a friendly, consensual encounter, and there is nothing consensual about answering your door to find a gun in your face. Deputy Sylvester had qualified immunity because there was no case exactly on point saying that he couldn’t make those choices.

In fact, there still isn’t. He could do the exact same thing tomorrow, and the day after, and there would be no legal consequences. That’s qualified immunity for you.

That an innocent person killed because of a scared cop can’t recover for the deprivation of his life is bad enough. That he was deprived of his life is even worse. That the law endorses both things, independently, under yet another judge-made exception to both the Constitution and statute reduced the law to a farce that will employ any sophistry necessary to rationalize why cop’s lives matter more than anything else.

Holding an officer accountable for rights violations is almost impossible. Those who've obtained settlements might receive something to help with medical/funeral bills and the feeling they might have made a small, positive difference. But the reality is every settlement comes with no admission of wrongdoing and -- better/worse yet (cop/citizen) -- no precedential ruling that would make it easier to hold officers accountable for their actions in the future.

from the nation-is-too-damn-insecure dept

It looks as though the Supreme Court may have to step in and settle a particularly thorny question involving the First Amendment, Second Amendment, national security interests, and 3D-printed weapons. Cody Wilson and his company, Defense Distributed, sued the State Department over its demands he cease distributing instructions for the creation of weapons and weapons parts.

The State Department came along too late to make much of a difference. It claimed Wilson's instructions violated international arms distribution laws, but by the time it noticed what Defense Distributed was doing, the instructions were all over the web. They still are, and no amount of litigation or government orders is going to change that.

What Defense Distributed is doing is perfectly legal in the United States. The State Department says it's illegal to put these instructions in the hands of foreign enemies. Since it can't control internet traffic, it's decided to take down the publisher.

That's the First Amendment implication, which can't really be separated from Second Amendment concerns considering the legality of distributing these instructions domestically. Last September, the Fifth Circuit Appeals Court found [PDF] in favor of the government and its national security concerns.

Because both public interests asserted here are strong, we find it most helpful to focus on the balance of harm requirement, which looks to the relative harm to both parties if the injunction is granted or denied. If we affirm the district court’s denial, but Plaintiffs-Appellants eventually prove they are entitled to a permanent injunction, their constitutional rights will have been violated in the meantime, but only temporarily. Plaintiffs-Appellants argue that this result is absurd because the Published Files are already available through third party websites such as the Pirate Bay, but granting the preliminary injunction sought by Plaintiffs-Appellants would allow them to share online not only the Published Files but also any new, previously unpublished files. That leads us to the other side of the balance of harm inquiry.

If we reverse the district court’s denial and instead grant the preliminary injunction, Plaintiffs-Appellants would legally be permitted to post on the internet as many 3D printing and CNC milling files as they wish, including the Ghost Gunner CNC milling files for producing AR-15 lower receivers and additional 3D-printed weapons and weapon parts. Even if Plaintiffs-Appellants eventually fail to obtain a permanent injunction, the files posted in the interim would remain online essentially forever, hosted by foreign websites such as the Pirate Bay and freely available worldwide. That is not a far-fetched hypothetical: the initial Published Files are still available on such sites, and Plaintiffs-Appellants have indicated they will share additional, previously unreleased files as soon as they are permitted to do so. Because those files would never go away, a preliminary injunction would function, in effect, as a permanent injunction as to all files released in the interim. Thus, the national defense and national security interest would be harmed forever. The fact that national security might be permanently harmed while Plaintiffs-Appellants’ constitutional rights might be temporarily harmed strongly supports our conclusion that the district court did not abuse its discretion in weighing the balance in favor of national defense and national security.

A lengthy dissent challenged the First Amendment implications of this decision, which brought prior restraint into play by forbidding Defense Distributed from posting new instructions, along with further distribution of plans it had already released. But the majority didn't find much it liked in the dissent -- at least not when weighing it against the government's national security interests.

The dissent argues that we “should have held that the domestic internet publication” of the technical data at issue presents no “immediate danger to national security, especially in light of the fact that many of these files are now widely available over the Internet and that the world is awash with small arms.” We note the following:

(1) If Plaintiffs-Appellants’ publication on the Internet were truly domestic, i.e., limited to United States citizens, there is no question that it would be legal. The question presented in this case is whether Plaintiffs-Appellants may place such files on the Internet for unrestricted worldwide download.

(2) This case does not concern only the files that Plaintiffs-Appellants previously made available online. Plaintiffs-Appellants have indicated their intent to make many more files available for download as soon as they are legally allowed to do so. Thus, the bulk of the potential harm has not yet been done but could be if Plaintiffs-Appellants obtain a preliminary injunction that is later determined to have been erroneously granted.

(3) The world may be “awash with small arms,” but it is not yet awash with the ability to make untraceable firearms anywhere with virtually no technical skill. For these reasons and the ones we set out above, we remain convinced that the potential permanent harm to the State Department’s strong national security interest outweighs the potential temporary harm to Plaintiffs-Appellants’ strong First Amendment interest.

The majority also pointed out the government can violate the First Amendment in the interest of national security, and that this court in particular seemed inclined to let it.

Defense Distributed asked for an en banc rehearing. That has been denied [PDF]. This denial gives the dissent the chance to lead off (so to speak), and the first thing it does is point out the obvious First Amendment violations.

The panel opinion’s flawed preliminary injunction analysis permits perhaps the most egregious deprivation of First Amendment rights possible: a content-based prior restraint. [...] First, the panel opinion fails to review the likelihood of success on the merits—which ten of our sister circuits agree is an essential inquiry in a First Amendment preliminary injunction case. Second, the panel opinion accepts that a mere assertion of a national security interest is a sufficient justification for a prior restraint on speech. Third, the panel opinion conducts a fundamentally flawed analysis of irreparable harm.

As the dissent points out, the majority chose to deploy prior restraint based on little more than the government's vague claims of insecurity.

The Government contends that the gun designs at issue could potentially threaten national security. However, this speculation falls far short of the required showing under Bernard and Nebraska Press, showing neither the immediacy of the danger nor the necessity of the prior restraint. Allowing such a paltry assertion of national security interests to justify a grave deprivation of First Amendment rights treats the words “national security” as a magic spell, the mere invocation of which makes free speech instantly disappear.

But this is exactly what the government does: make rights disappear with its "magic spell." And the courts continue to let it do this. In this case alone, the invocation of "national security" resulted in three consecutive decisions (district court and twice at the appeals court) in favor of prior restraint.

If the Supreme Court decides to review this, there's little in its track record suggesting it will do otherwise. But there's zero chance the government will let this go unregulated, even if the Supreme Court grants Defense Distributed a permanent injunction against the State Department. The government needs to have this threat of prosecution to hang over the head of Defense Distributed, as well as others with similar interests.

If this appears to operate in an area existing legislation can't touch, additional legislation will be introduced to address it. That may result in the government pressing ISPs into service to regulate internet traffic -- spying on users to catch them in the act of distributing illegal gun manufacturing plans. We'll have a Border Patrol but for the internet, maintained by private companies but overseen by the government.

It's not that there aren't potentially-serious repercussions from the distribution of 3D-printed gun plans. There's lots to be concerned about, but the concerns aren't new ones. Untraceable guns end up in the hands of people who aren't supposed to have them all the time. Printing one at home isn't a feasible reality for most people, especially those whose income and expertise are limited, which is most of the world.

Rights aren't sold separately. They're a bundle. The multiple opinions in this case have mostly ignored the Second Amendment implications in favor of examining the First. But those should be considered as well. If it's legal to manufacture these parts in the US, the State Department's order overreaches. Its concerns about worldwide distribution may be valid, but it's impossible to prevent this distribution without preventing Americans from doing something their government has told them it's ok to do.

from the reprogramming-in-effect dept

As you may have noticed, a lot of people have opinions on the election that just happened. And, many people are using social media to express those opinions, for good or for bad. Some people are excited, some people are angry. And no matter which side you fall on, you should recognize that expressing opinions on social media is protected (and should be encouraged as part of a healthy political process involving public discussion and debate). Kevin Allred, a lecturer at Rutgers University, is definitely on the side of folks who aren't happy with the results of the election. And, like many, he's been tweeting about his opinions on the matter. Having read through his Twitter feed, it doesn't seem all that out of the ordinary from stuff that I've seen from others. In fact, I'd argue that it actually seems fairly tame.

To be clear: flag burning is perfectly legal and protected expression, as per the US Supreme Court. But here, Allred wasn't even burning a flag. He was talking about burning a flag, which is, obviously, also protected expression. Ditto on the random rhetorical on the 2nd Amendment. No matter what you think of Allred's position on the election, flag burning OR the 2nd Amendment, you should recognize that the 1st Amendment protects that expression. Update: It also appears that Allred deleted the original tweet on the second point which was certainly noticeably different than the way he describes it above. It wasn't just a question in the nature stated, but rather a more direct question of what would happen when he went out and started to shoot white people. That's still protected speech, but at least there's slightly more of an explanation for why law enforcement wanted to go visit him. But it's still not necessarily a reason to detain him.

The Rutgers police and NYPD apparently disagreed. They forced him to go to a psychiatric hospital to be evaluated.

and this is for exercising my fucking first amendment rights. i'm being labeled a threat and put in a psych hospital

Allred blames Trump for this -- and while we've made it clear that we've got lots of concerns about Trump's views on free speech, Trump isn't exactly directing police to pick up people for various tweets. But the whole situation is extremely disturbing nonetheless. It's frightening how little law enforcement seems to recognize or care about the First Amendment.

from the wherein-things-potentially-go-from-bad-to-much,-much-worse dept

There are plenty of proponents of the First and Second Amendments, both of which tend to be very divisive at times. There's enough overlap that many fully support both, but there's also enough dissension that many use the First to argue for the dismantling of the Second. This is often countered by assertions that without the Second there would be no First, because when it all comes down to it, nothing beats back encroaching governments faster than armed revolutions.

Thanks to the advent of 3D printing, we've reached a nexus point. The law says you may own (certain types of) guns. The law also prevents the distribution of guns to other countries we're currently not getting along with. Being able to print weapons makes a mockery of these restrictions. We're no longer talking about crates of guns being smuggled aboard freighters or low-flying Cessnas. Now we're dealing with the reality that anyone, anywhere in the world, can download and manufacture a gun.

Cody Wilson, of gun manufacturing advocacy group Defense Distributed, is that nexus. Shortly after Wilson debuted his fully-functioning 3D printed gun, he received a cease and desist from the State Department, ordering him to stop distributing his blueprint. That worked about as well as you can imagine.

Wilson's gun manufacturing advocacy group Defense Distributed, along with the gun rights group the Second Amendment Foundation, on Wednesday filed a lawsuit against the State Department and several of its officials, including Secretary of State John Kerry. In their complaint, they claim that a State Department agency called the Directorate of Defense Trade Controls (DDTC) violated their first amendment right to free speech by telling Defense Distributed that it couldn't publish a 3-D printable file for its one-shot plastic pistol known as the Liberator, along with a collection of other printable gun parts, on its website.

Because a blueprint isn't a fully-formed gun -- at least not until the end user completes the process -- Wilson is arguing that his design is nothing more than free speech. If so, then the State Department's orders violate Wilson's First Amendment rights. By declaring the publishing of a blueprint on the internet to be indistinguishable from exporting weapons, the government is engaging in prior restraint, according to arguments made in his lawsuit.

As Andy Greenberg at Wired points out, the government has used the International Traffic in Arms Regulation (ITAR) to regulate not-actually-guns before.

ITAR already has a long history of being used to threaten Americans who publish controversial code. In the 1990s, the same regulations were used to threaten cryptographers with prosecution for posting online the first freely available strong encryption tools. Under ITAR regulations, a piece of uncrackable crypto software like PGP was considered a military munition. PGP inventor Phil Zimmermann was even investigated by the Department of Justice for three years at the height of what has come to be known as the Crypto Wars.

This, too, was challenged on First Amendment grounds, but that particular angle was left without closure. The government simply shifted regulation of computer code to the Commerce Department and carved out an exception for encryption. Good news for those producing encryption tools, but of very limited use to Wilson.

In fact, this argument may end up doing more damage than good, if the government chooses to play regulatory roulette in order to avoid having the First Amendment question answered with a legal opinion that may not be in its favor. Chances are that a favorable exception won't be in the offing -- replaced instead with a newfound desire to regulate internet traffic and/or place more burdens on intermediaries to police web traffic involving weapon blueprints. The chance of additional regulatory restrictions on the sale and use of 3D printers is even better. Already, private companies are taking proactive -- but stupid and futile -- moves to keep themselves distanced from something the government clearly thinks is an illegal act. Beyond regulation of the components, there's the potential for both free speech and gun ownership to be worse off by the end of this.

But, as noted above, it's not just the First Amendment being brought into play here. Wilson has more constitutional challenges.

Its complaint also cites the second amendment, arguing that by restricting Defense Distributed’s sharing of printable gun files the government denied the group’s members and followers the right to bear—and acquire—arms. And it questions the authority of the State Department to regulate the publication of technical data, a power it’s long assumed it had been granted by Congress under the Arms Export Control Act of 1976.

Defense Distributed is hitting the State Department with a fifth amendment argument, too. It claims that its staff had their right to “due process” violated. No government agency, it says, can hold the threat of prosecution over Defense Distributed’s head without even a decision on whether its publications are illegal or not—and without a time limit on when it must make that decision.

If you're begging for more gun regulation, this seems to be a good way of working backwards towards it. I'm sure that's the last thing Wilson wants, but the issues raised here are simply too enticing for the government to ignore. Its expressed concern relates to "exported" weapons, but there are implications right here at home. People may decide to print their own guns rather than abide by their state's respective restrictions. Felons who are forbidden to purchase guns may decide to invest in 3D printers. But, despite the introduction of new technology, this really isn't markedly different from the way the gun "market" has worked for years. Straw buyers purchase weapons for those who can't, and criminals are largely unconcerned with many laws, not just the gun-related ones, making any gun restrictions essentially meaningless. But the government is apt to view this as a bold new era of unregulated gun manufacturing and will act swiftly and ridiculously to tame the Wild West of weapon printing.

No doubt legislators and regulators will have visions of terrorists and foreign enemies operating 3D printing mills to mass produce weapons, as if the old way of buying black market weapons was somehow more impractical than gathering the equipment and expertise needed to safely generate dozens of weapons that actually work. There's actually an upshot to global distribution of gun blueprints and 3D printing technology. For people under oppressive regimes, the addition of self-contained, secret gun manufacturing could allow for uprisings and revolutions or simply act as a deterrent for additional ruling class power grabs.

But underneath all of this is the bitter reality that the government is ignoring. No matter what the courts decide and no matter what legislation and regulations are thrown at it, this is already a done deal. Wilson may have taken his plans down in response to the State Department's order, but it's already made its way to the edges of the internet -- reposted at websites and file lockers and spread via torrents. Other gunmakers have already made design tweaks and improved on Wilson's early models. These updated versions have similarly spread across the web. Opting for oppressive, restrictive legislation will do nothing but cause collateral damage -- if damaging everything but the intended target can truly be considered "collateral."

If Wilson prevails on constitutional grounds, it will only result in the government searching for a different route to get what it wants: illusory control. It won't simply accept the fact that this is the new reality and that efforts to stop it are not only futile, but harmful to its own citizens. If it chooses to view code for a printed weapon as either a weapon or weaponized code, it will use public safety and national security to explain away any rights that end up underfoot.

In some manner, it appears that the NRA's response is that the 2nd Amendment is more important than other amendments in the Constitution. Blaming music and movies is an attack on the 1st Amendment, which allows for freedom of expression, while turning our schools into police states, patrolled by armed guards, at least toes the line on the 4th Amendment. The database of mentally ill patients also raises significant privacy issues. No matter what you think of various gun control proposals, it seems rather ridiculous to take a strong Constitutional stand as the basis for your argument... only to make a complete mockery of other amendments.